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- CA6: Electronic devices were “property under his control” subject to search while on supervised release
- N.D.Tex.: PC and GFE questions were close, and that’s good enough
- Book Review of Unreasonable: Constitutionalizing Racism
- N.D.Ga.: Exigency shown for warrantless entry to prevent destruction of drugs
- E.D.Cal.: Failure to provide medical care to an arrestee can be a 4A issue
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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book
www.johnwesleyhall.com -
© 2003-24,
online since Feb. 24, 2003 Approx. 425,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (27,400+ on WordPress as of 7/23/24) -
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Fourth Amendment cases,
citations, and links -
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me -
"Life is not a matter of holding good cards, but of playing a poor hand well."
–Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others) -
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)). -
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud -
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848) -
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984). -
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961). -
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987). -
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting). -
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765) -
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting) -
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring). -
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987) -
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967) -
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting) -
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989) -
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards -
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp] -
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
---Pepé Le Pew "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Author Archives: Hall
D.S.D.: Misidentifying cell phone make in SW no error where number and pass code were correct
Misidentifying defendant’s cell phone for a search warrant as a Motorola when it was a Samsung is a mistake that can be overlooked. It had the phone number in the warrant and defendant’s pass code opened it. Finally, the good … Continue reading
C.D.Cal.: Motion to suppress admitting no facts is denied as speculative
Defendant’s motion to suppress admitting no knowledge of the facts is denied as speculative. United States v. Lipman, 2024 U.S. Dist. LEXIS 158940 (C.D. Cal. Sep. 4, 2024). “Here, the totality of the circumstances indicates that Agent Oliver had a … Continue reading
CA4: A Franks challenge requires an offer of proof, and it cannot be conclusory
A Franks challenge requires an offer of proof, and it cannot be conclusory. United States v. Shaw, 2024 U.S. App. LEXIS 22585 (4th Cir. Sep. 5, 2024):
CA8: No individualized PC to arrest all protestors in a group
Probable cause as to a group of people involved in a protest sweeps too broadly. Ybarra requires probable cause as to individuals. It was not reasonable to believe everyone in this particular group was violating the law. They couldn’t be … Continue reading
S.D.Ind.: Handwritten alterations to SW were authorized by issuing magistrate and were valid
Handwritten alterations on the search warrant to match the same subjects as the affidavit were authorized by the issuing magistrate and were valid. And, even if this made it overbroad, it was still valid under the good faith exception. United … Continue reading
Law360: How To Use Geofence Warrants In A Constitutional Manner
Law360: How To Use Geofence Warrants In A Constitutional Manner by Robert Frommer (“Geofence warrants are powerful tools that let law enforcement identify devices located at a specific location and time based on data users send to Google LLC and … Continue reading
EFF: You Really Do Have Some Expectation of Privacy in Public
EFF: You Really Do Have Some Expectation of Privacy in Public by Matthew Guariglia & Lisa Femia:
NC: Warrant not needed to access data from GPS for post-conviction supervision
The data generated from the GPS attached to defendant as part of his post-conviction supervision can be accessed by law enforcement without a warrant. State v. Thomas, 2024 N.C. App. LEXIS 687 (Sep. 3, 2024). The Tenth Circuit has made … Continue reading
TX7: Failure to follow inventory procedures at all required suppression
The inventory policy here wasn’t followed to remove valuables and let defendant keep them. Instead it appears to be a criminal evidentiary search and stopped when finding a gun and running the serial number and asking if defendant was a … Continue reading
DE: Changing cell phones doesn’t defeat nexus
The state showed nexus and no staleness in warrant for defendant’s cell phone for pornography despite the fact he had a different phone at the time of the search. State v. Clark, 2024 Del. Super. LEXIS 619 (Aug. 29, 2024). … Continue reading
CA1: Seeing one’s naked body can violate 4A without it being a “search”
Plaintiff inmate gave birth at a hospital while serving a jail sentence. The jailers allegedly seeing her naked in the hospital delivery room violated clearly established Fourth Amendment law. “Thus, a search under the Fourth Amendment does not require Haskell … Continue reading
CA6: Some reasonable property damage during an arrest is not subject to 5A takings clause
As long as the police were reasonable in their actions, some damages to an arrestee’s property is not subject to the Fifth Amendment’s takings clause. Slaybaugh v. Rutherford Cty., 2024 U.S. App. LEXIS 22277 (6th Cir. Sep. 3, 2024):
CA10: Failure to mention search condition for supervised release at sentencing cured by it being in judgment
At sentencing, defendant was told that the “standard conditions apply,” and being subjected to warrantless searches was not mentioned. It was, however, in the judgment, and that’s notice enough. United States v. Martin, 2024 U.S. App. LEXIS 22091 (10th Cir. … Continue reading
KS: Def’s general motion to suppress didn’t preserve particularity for appeal
“Huggins argued one reason for suppression at trial and hopes the language of his objection was sufficiently vague to preserve a different basis for appeal. This defeats the statutory requirement for specificity, and it leaves trial courts guessing what the … Continue reading
N.D.Ind.: Slightly different trial testimony doesn’t make a Franks violation; it’s what the officer knew at the time
Slightly different trial testimony here didn’t support a Franks challenge. The officer swore to what he knew when he applied for the warrant, and that wasn’t false. United States v. Bates, 2024 U.S. Dist. LEXIS 156420 (N.D. Ind. Aug. 30, … Continue reading
Cal.6: Cell phone SW was limited to a specific date and time for certain materials, but the search far exceeded it; suppressed, no GFE
The search warrant here was issued for evidence of a sexual assault of an adult. There were pretext text messages sent by the police pretending to be the victim to get an admission. When the search warrant was executed, child … Continue reading
CO: Second entry after seeing a dead dog in def’s yard was without exigency and suppressed
The officer’s first approach to defendant’s door was a knock-and-talk, and he could see a dead dog which he checked on and confirmed. The trip to the front door was not to gather information en route. The warrantless entry coming … Continue reading
MO: Break in chain from Good Samaritan Law entry occurred when def was searched for transport in police car
The Missouri Good Samaritan Law provides immunity from prosecution from evidence of crime found as a result of a medically-related entry. Here, however, defendant was searched before he was placed in a patrol car, and immunity wasn’t what the legislature … Continue reading